Citation NR: 9735651
Decision Date: 10/22/97 Archive Date: 10/28/97
DOCKET NO. 94-20 582 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder, currently evaluated as 70 percent disabling.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
C. Hickey, Associate Counsel
INTRODUCTION
The veteran had active service from April 1968 to April 1970.
This appeal to the Board of Veterans' Appeals (Board) arises
from the May 1993 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) which granted
service connection for post-traumatic stress disorder,
evaluated as 70 percent disabling.
The case was previously before the Board in March 1996 when
it was remanded for further evidentiary development.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by and on behalf of the veteran that he is
entitled to an increased, 100 percent rating for post-
traumatic stress disorder. It is maintained essentially that
the veteran is unemployable and totally disabled on the basis
of symptomatology attributable to post-traumatic stress
disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims folder. Based on our review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that, resolving reasonable doubt
in the veteranís favor, the evidence warrants an increased,
100 percent rating for post-traumatic stress disorder (PTSD).
FINDING OF FACT
The veteran is unemployable due to symptoms of post-traumatic
stress disorder.
CONCLUSION OF LAW
Post-traumatic stress disorder is 100 percent disabling in
accordance with the applicable schedular criteria.
38 U.S.C.A. ßß 1155, 5107 (West 1991); 38 C.F.R. ßß 4.1, 4.2,
4.7, 4.10 and Part 4, Code 9411 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
Received in September 1982 was the veteranís claim for
service connection for post-Vietnam stress syndrome. Also of
record is a VA psychiatric treatment plan dated in September
1982 which indicates acute manic episodes with psychosis.
The report of an Agent Orange examination conducted in
October 1982 noted that the veteran had been hospitalized in
August 1981 and September 1982 for Vietnam stress syndrome.
The October 1982 examinerís impression included delayed
Vietnam stress syndrome.
When a VA psychiatric evaluation was conducted in March 1983,
the veteran related that he served in Vietnam from 1968 to
1969 and saw considerable action. He reported that in 1974
he had begun getting ďup tightĒ with increasing ethanol
abuse. He was reportedly hospitalized for an acute manic
episode in 1981. At that time he was treated with
psychotropic medications. It was further recorded that the
veteran had been hospitalized in September 1982 after
threatening his wife and child with a knife. At that time he
was considered to be in an acute manic and psychotic state.
Outpatient treatment and medication reportedly followed. His
complaints in March 1983 did not include nightmares or
flashbacks, but he did indicate exaggerated startle response
and an intensely angry reaction to Vietnamese people. He
also complained of changes in attitude, depression, and loss
of self, as well as insomnia. He remained angry and
distrustful of others, and was reportedly unable to obtain
employment. On mental status examination the veteran
admitted hallucinations and delusions in the past. The
diagnosis was bipolar disorder, manic, in remission. The
examiner commented that the veteran had some symptoms of
PTSD, but did not fit the criteria for diagnosis. Most of
his symptoms related to bipolar disorder. It was considered
possible that his Vietnam experience was involved in the
onset of his diagnosed disease, although the record did not
document that such was the case.
VA Medical Center (VAMC) summaries show that the veteran was
hospitalized from March to July 1987, due to a suicide
attempt. At that time it was noted that he had been
hospitalized for manic episodes, in 1983 and in October 1986,
when he had reportedly presented with hypervigilance and
potentially violent behavior. Two weeks after his discharge
in 1986 he again attempted suicide and was treated at a VA
facility for several weeks. In 1987, he related that he had
been happily employed in the landscaping business for several
years, although finding employment during the winter months
was a continuing problem. It was also noted that the
veteranís individual counseling during hospitalization
focused in part on his concern that he was suffering from
PTSD. On his own initiative he attended a PTSD counseling
group. The report noted that the veteran presented the
following symptoms consistent with PTSD: paranoid
hypervigilance, distrustfullness, estrangement from others,
irritability with outbursts of anger and avoidance of
thoughts and feelings associated with the trauma. On the
other hand he did not report experiencing flashbacks,
nightmares or revivification of traumatic events. The latter
was considered possibly attributable to the fact that the
veteran was so guarded and defensive that he had been unable
to relate such feelings or thoughts to his clinician. While
it was not considered possible to say unequivocally that the
veteran suffered from PTSD, there was sufficient evidence to
support further evaluation. The diagnosis in July 1987 was
bipolar disorder.
Private hospital records dated September 1987 to October 1987
show that the veteran was admitted for psychiatric evaluation
after being found living in the street, noncompliance with
medications, and exhibiting loosening of associations and
bizarre affect responses with hostile attitudes. It was
noted that the veteran admitted to symptoms of PTSD and
feeling rage. He also reported that he had engaged in heavy
drug abuse in Vietnam. The diagnosis was Axis I: Bipolar
affective disorder, without psychotic features, post-
traumatic stress disorder, chronic or delayed. The diagnosis
of PTSD was said to be based upon the history of recurrent
memories of Vietnam where the veteran was a paramedic with
exposure to many wounded, and his feelings of rage. It was
also noted that he had been in treatment for PTSD at a VA
facility.
VA outpatient records dated September 1987 to March 1988
reflect ongoing counseling and medication for psychiatric
symptoms with diagnoses of bipolar disorder and
schizoaffective disorder.
At a March 1988 VA examination, the veteran denied nightmares
or hallucinations. He also reported palliation of insomnia
with medication. The diagnosis was
bipolar disorder, by history; mixed personality disorder.
VA outpatient records dated March 1988 to July 1988 reflect
continued counseling and medication for symptoms attributed
to bipolar disorder.
Of record is a letter signed by the veteranís counselor from
the Vet Center, and apparently written in 1989, in which the
author stated that she had treated the veteran intermittently
over a long period of time and found him to be profoundly
affected by his Vietnam experience. His periodic flights
from treatment were considered to be related to his inability
to deal with his most painful memories of Vietnam. In the
counselorís opinion, the continued chaos of the veteranís
life was his way of acting out the pain and confusion of war
and its aftermath. She believed that the veteranís Vietnam
experience profoundly impaired him from maintaining
employment and seriously complicated his bipolar depression.
The author stated that a dual diagnosis of PTSD, chronic,
delayed, and bipolar depression was appropriate.
When the veteran testified at an August 1989 personal hearing
in support of his claim for service connection for PTSD, he
related that, as a combat medic in Vietnam, he was involved
in many fire-fights and particularly recalled one soldier who
died in his arms. In the veteranís own opinion he
experienced PTSD on a daily basis.
Of record is a private medical report signed by Albert
Browne-Mayers, M.D., and dated in February 1990 which relates
that the veteran had been in treatment consisting of weekly
counseling and monthly medication review at the Charlotte
Hungerford Hospital in Winsted, Connecticut, since July 1988.
His diagnosis during that time had been bipolar disorder,
mixed, with psychosis, rule out post-traumatic stress
disorder.
On VA examination in May 1991 the veteran reported his
history of service as a combat medic in Vietnam where he
reportedly witnessed many deaths, including one soldier who
died in his arms. The veteran complained of nightmares. The
summary of psychological test results stated that the
evaluation was consistent with a diagnosis of bipolar
disorder which may be exacerbated by PTSD, but it was
difficult to separate out the effect of PTSD. The diagnosis
was Axis I: Bipolar affective disorder by history. The
examiner noted that the veteran was having some nightmares
but did not meet the other criteria for PTSD. It was
considered possible that his PTSD symptoms were masked by
symptoms of bipolar affective disorder.
Private hospital records dated March to April 1992 show that
the veteran was admitted to Fairfield Hills Hospital
following an episode in which the veteran put his foot
through a window and caused additional property damage at his
rented apartment. Although the provisional diagnosis on
admission was bipolar disorder, manic, moderate, the examiner
noted that in observing him and on mental status examination,
little was found to suggest active bipolar disorder in the
past or at the time of examination. The psychiatric
diagnosis at discharge was post-traumatic stress disorder,
delayed onset.
Of record is a statement dated in September 1992 and signed
by a VA physician who related that for many years he had
supervised the veteranís medication for bipolar disorder and
PTSD, manifested by intrusive recollections of deaths
witnessed as a medic as well as nightmare and physiological
and psychological reactivity to reminders of the war, marked
by avoidance behavior, characterized by social isolation,
blunted affect, hyperarousal as manifest by sleep disorder,
irritability, increased startle and anxiety. Although his
symptoms were somewhat responsive to medication, the veteran
was considered markedly symptomatic with delusional episodes
requiring hospitalization several times annually.
Also of record is a report dated in November 1992 and signed
by a VA readjustment counseling therapist who had treated the
veteran since August 1992 for problems related to post-
traumatic stress disorder, and related many aspects of the
veteranís reported experiences in Vietnam. The counselor
also stated that as a result of these traumatic experiences
the veteran was plagued with flashbacks, nightmares and
intrusive thoughts, and needed to keep busy almost all the
time. It was noted that he had been unable to maintain
employment, his last full time position being in 1987 and
lasting only two months. It was the authorís opinion that
the veteranís symptoms were totally incapacitating, bordering
on repudiation of reality with disturbed thought and
behavioral process associated at times with daily activities
including fantasy, confusion, panic, explosions of aggressive
energy resulting in profound retreat from mature behavior.
The veteran was considered to be so adversely affected as to
result in virtual isolation in the community.
The report of VA examination conducted in November 1992
reflected the veteranís complaints of inability to sleep
without medications. In the absence of sufficient medication
he reportedly awakened startled, and with shortness of breath
and tremors and at times ďpictures of Vietnam in front of
me.Ē Symptoms reportedly increased in the warm months and
during periods of stress. He related that since 1988 he had
been experiencing symptoms of exaggerated startle reflex,
social isolation, avoidance of mention of Vietnam,
irritability, and a sense of foreshortened future. It was
noted that the veteran had been diagnosed with bipolar
disorder and PTSD by a physician who saw him in outpatient
treatment. The diagnosis was Axis I: Bipolar disorder,
mixed, post-traumatic stress disorder, marijuana abuse,
alcohol dependence in remission, cocaine abuse in remission,
opiate abuse, heroin in remission, hallucinogen abuse, in
remission. The examiner commented that the veteran met the
criteria for both bipolar disorder, mixed and PTSD. It was
felt that his PTSD symptoms fluctuated with the seasons,
increasing during the hot summer months. He stated that it
would be unrealistic to try to determine which of the
veteranís symptoms were caused by which of his disorders, as
there was not only an overlap of symptoms, but also a
likelihood that an exacerbation one of the disorders would
tend to lead to an exacerbation in the other. Diagnostic
tests were not available to determine what percent of his
difficulties was caused by which of his concurrent disorders.
The record reflects outpatient treatment, to include
counseling and medication from November 1992 to August 1993,
with diagnoses of bipolar disorder and PTSD.
Private medical records dated in May 1993 to June 1993 show
the veteran was hospitalized due to complaints of
overwhelming feelings of stress and lack of safety after
leaving the motel where he had lived and moving into a camp
site in the woods. He also complained of recurrent, war
related nightmares, as well as daily flashbacks and intruding
thoughts about Vietnam. Psychological testing conducted
during his hospitalization suggested intense depression and
impulsiveness. The discharge diagnosis was Axis I: PTSD,
bipolar disorder, history of polysubstance abuse.
A VAMC discharge summary dated in July 1993 shows that the
veteran was hospitalized due to complaints of flashbacks,
rage attacks, and sleep difficulties with possible
hallucinations. When he was discharged prematurely against
medical advice approximately one week later the diagnosis was
Axis I: PTSD, chronic, bipolar disorder, mixed, rule out
paranoid delusional disorder, rule out organic delusional
disorder, not otherwise specified. In December 1993 the
veteran was hospitalized at a VAMC for psychiatric
decompensation considered to be related to the death of his
father and the veteranís imminent move from a motel to his
own apartment. The examiner noted that the veteranís first
psychotic break had apparently occurred in 1981 and linked by
the veteran to the Iran hostage crisis. On discharge in
January 1994 the diagnosis was Axis I: schizoaffective
disorder, PTSD.
Outpatient treatment records dated in December 1995 to
February 1996 show the veteran exhibited distrustfullness and
hypervigilance during counseling at a Vet Center. On
terminating his treatment the veteran expressed plans to join
a VA PTSD group.
The veteran was hospitalized at a VAMC for approximately one
week in May 1996 with chief complaint of increasing
confusion, and flashbacks with auditory hallucinations. The
diagnoses at discharge were Axis I: schizoaffective disorder,
PTSD.
The report of a VA social and industrial survey conducted in
September 1996 shows the veteran indicated that his last
employment had ended in August 1986. Subsequently he had
been involved in a VA hospital work program in 1987, which he
did not complete. He related that he had not sought work
since that time and did not want to work at the time of the
survey.
When the veteran was admitted to a VAMC in October 1996 he
had reportedly been exhibiting a progression of bizarre and
disorganized behavior over the previous two to three months.
His landlord reported that the veteran had become aroused by
everyday phenomena such as alarms and firecrackers. He had
disturbed his neighbors with strange sounds and damaged his
apartment. The veteran admitted that he had discontinued his
psychotropic medication two weeks earlier and reported
increased flashbacks and nightmares related to Vietnam.
Symptoms were alleviated with reinstitution of medication and
the veteran was considered psychiatrically stable although
not employable at the time of discharge in November 1996. The
diagnosis was Axis I: schizo-affective disorder, bipolar
type, PTSD.
At the time of VA examination conducted later in November
1996 the veteran was again hospitalized at a VA Medical
Center (VAMC) due to decompensation of his psychiatric
condition, including a suicide threat. The examiner noted
the veteran had always carried a diagnosis of bipolar
disorder, with marked psychotic symptoms, i.e. thought
disorder, hallucinations, and delusions, evident on the
occasion of several hospitalizations. Additionally, the
record revealed a consistent presentation of recurrent
memories of his war experiences as well as reports of
sleeping difficulties and avoidance of stimuli related to
Vietnam. This pattern continued at the time of examination,
with the veteran trying to avoid discussion of those issues.
The examiner stated that, in summary, the veteranís
hospitalization had been characterized by symptoms of PTSD
and schizoaffective disorder presenting together, and
symptoms of both disorders were present at baseline.
On mental status examination the veteran was described as
somewhat bizarre in his mannerisms; his face was serious most
of the time, with slow and deliberate movements and somewhat
intense eye contact, although he was unable to tolerate long
interviews. His mood was detached and somewhat irritable.
Affect was inappropriate, inasmuch as he was at times
appearing to respond to internal stimuli. He admitted to
auditory hallucinations, reportedly alleviated with
medication. He admitted to recurrent thoughts of his
experiences in Vietnam, although medication helped him to
concentrate on his current situation. The examiner stated
that the veteran showed remarkable idiosyncratic thought. He
was also described as concrete, turning every conversation
into a discussion of his living situation. There were no
gross cognitive deficits. The diagnosis was Axis I: post-
traumatic stress disorder, schizo-affective disorder, history
of polysubstance abuse in remission. The examinerís
assessment was that the veteran clearly suffered from both
PTSD and Schizoaffective disorder. The diagnosis of PTSD was
based upon recurrence of memories and nightmares related to
Vietnam. His avoidance was considered remarkable. The
veteran was unwilling to discuss combat experiences, which he
tried to block out as a source of anxiety. Clear symptoms of
schizoaffective disorder were thought disorder, occasional
mood symptoms, mostly irritability, pressured speech, and
past episodes of depression and suicide attempts. He had no
problems with substance abuse at the time of examination.
The examiner stated that assignment of a Global Assessment of
Functioning (GAF) score based upon PTSD symptoms alone, could
not be accomplished, because there had been a permanent and
close relationship between the symptoms of PTSD and
schizoaffective disorder, complicated by the veteranís
noncompliance with medication, both types of symptoms being
present at the time of exacerbations related to failure to
take his medication. The examiner expressed the view that it
was impossible to separate the symptoms of the two disorders,
which always presented simultaneously and were present at the
baseline. It was considered that the veteran was unable to
sustain employment, and had been unemployed since the 1980ís.
Since then his behavior had deteriorated to the extent the he
was considered unable to live independently or mange his
finances and conservatorship was being sought. At the time
of his hospital discharge in December 1996 the diagnosis was
Axis I: schizo-affective disorder, bipolar type, PTSD.
Legal Analysis
In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can
practically be determined, the average impairment of earning
capacity. 38 U.S.C.A. ß 1155; 38 C.F.R. ß 4.1. Separate
diagnostic codes identify the various disabilities. The
Department of Veterans Affairs has a duty to acknowledge and
consider all regulations which are potentially applicable
through the assertions and issues raised in the record and to
explain the reasons and bases for its conclusions. Schafrath
v. Derwinski, 1 Vet.App. 589 (1991).
Applicable regulations include, but are not limited to
38 C.F.R. ß 4.1, and 4.2. Also, 38 C.F.R. ß 4.10 provides
that, in cases of functional impairment, evaluations must be
based upon lack of usefulness of the affected part or system,
and medical examiners must furnish, in addition to
etiological, anatomical, pathological, laboratory and
prognostic data required for ordinary medical
classifications, full description of the effects of the
disability upon the personís ordinary activity. These
requirements for evaluation of the complete medical history
of the claimantís condition operate to protect claimants
against adverse decisions based upon a single, incomplete, or
inaccurate report, and to enable the VA to make a more
precise evaluation of the level of the disability and of any
changes in the condition. Schafrath v. Derwinski, 1 Vet.App.
at 594. In accordance with 38 C.F.R. ß 4.7, where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise the lower rating will be assigned.
Inasmuch as the regulations pertaining to the rating of
psychiatric disabilities were revised effective November 7,
1996, the veteran is entitled to evaluation of his disability
under either the previously existing regulations or the newly
amended regulations, whichever is determined to be more
favorable in the individual case.
Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991);
VAOPGCPREC 11-97 (Mar. 25, 1997). The Board will first
examine the veteranís case under the old rating criteria.
Under the general rating formula for psychoneurotic disorders
which was in effect during the pendency of the veteranís
appeal prior to November 1996, a 70 percent evaluation is for
assignment where there is evidence that the ability to
establish and maintain effective or favorable relationships
with people is severely impaired, and there are
psychoneurotic symptoms of such severity and persistence that
there is severe impairment in the ability to obtain and
retain employment. The criteria for a 100 percent evaluation
requires that the attitudes of all contacts except the most
intimate be so adversely affected as to result in virtual
isolation in the community, and that there be totally
incapacitating psychoneurotic symptoms bordering on gross
repudiation of reality with disturbed thought or behavioral
processes associated with almost all daily activities, such
as fantasy, confusion, panic and explosions of aggressive
energy resulting in profound retreat from mature behavior, or
a showing that the veteran is demonstrably unable to obtain
or retain employment. 38 C.F.R. Part 4, Code 9411.
On review of the record, the Board notes the current medical
evidence in this case shows that several VA physicians,
including two examiners in November 1996, have concluded that
the veteran is unemployable. Additionally, VA examiners in
November 1992 and November 1996 found that there was an
overlap of symptoms from the veteranís PTSD and his bipolar
disorder, and also a likelihood that an exacerbation of one
of those disorders would tend to lead to an exacerbation in
the other. The November 1992 examiner noted that diagnostic
tests were not available to determine what percentage of the
veteranís difficulties was caused by which of his concurrent
disorders. Although the November 1996 psychiatric examiner
attributed the diagnoses of PTSD and schizoaffective disorder
to distinct symptoms, he stated that it was impossible to
separate the symptoms of the two disorders, which always
presented simultaneously during exacerbations of the
veteranís psychiatric condition, and both were present at the
baseline. The November 1996 VA examiner found it was not
possible to comply with the request that he provide an
assessment of the veteranís level of functioning based upon
symptoms of PTSD alone.
In view of the foregoing the Board finds that the evidence
regarding whether the veteran is unemployable due to his
service-connected PTSD is at least in relative equipoise.
Resolving reasonable doubt in the veteranís favor, the Board
finds that an increased, 100 percent rating is warranted for
PTSD under the criteria in effect prior to November 7, 1996.
Consequently, a discussion of the new criteria and whether
the facts support a increased rating under these new
provisions is not necessary.
ORDER
An increased (100 percent) schedular rating for PTSD is
granted, subject to the law and regulations governing the
award of monetary benefits.
MARK F. HALSEY
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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